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HomeMy WebLinkAboutAgr 1994-11-04 (The Hilarita Ecumenical Association)LOAN AGREEMENT This Loan Agreement (the "Agreement") is made as of November 4 1994 between Tiburon Redevelopment Agency ("Agency"), and The Hilarita - Tiburon Ecumenical Association, a California nonprofit public benefit corporation (Bor- rower"). Recitals f A. The real property, known as The Hilarita, FHA No. 121-44246, Tiburon, California and more particularly described in Exhibit A ("Property") is privately owned and is subsidized by an FHA Section 236 mortgage. This mortgage was previously eligible for prepayment. Such prepayment would release the current owner from affordability restrictions and would allow the current owner to convert the housing complex located on 'the Property to market-rate housing. The Borrower is a newly formed nonprofit organiza- tion created jointly by and comprised of members of the Tiburon Ecumenical Association and the Hilarita Residents .Association. The Borrower intends to attempt to purchase the Property under the guidelines established under the federal legislation entitled the Low Income Housing Preservation and Resident Homeownership Act of 1990 (LIHPRHA) in order to preserve the Property's affordability to very low, low and moderate-income households. B. On June 2, 1993, the Agency appropriated $165,000 from the Agency's Low-and Moderate Income Housing Fund to lend to Borrower on the terms and conditions set forth herein for the purpose of financing in part Borrower's predevelopment costs in connection with acquisition of the Property. C. The loan is to be evidenced by an unsecured promissory note made by the Borrower to the order of Agency. Now, therefore, the parties hereto agree as follows: 1. The Loan (a) Subject to the terms and conditions set forth herein, Agency shall make a loan to Borrower in an aggregate principal amount of up to One Hundred Sixty-five Thousand Dollars ($165,000) (the "Loan"). (b) The Loan shall be evidenced by and payable as provided in a promissory note (the "Note") made by Borrower to the order of Agency in the form of Exhibit B hereto. 2. Disbursement of Loan 1 The full amount of the Loan will be disbursed directly to Borrower upon request by Borrower for costs incurred or anticipated, as approved by the Agency. Notwithstanding anything to the contrary herein, Agency shall approve, in its sole discretion, any Agent designated by Borrower. 4. Covenants of Borrower Borrower covenants to Agency that until the Loan has been finally paid: (a) Borrower shall use the proceeds of the Loan solely to finance predevelopment expenses necessary to facilitate purchase of the Property and shall report to Agency on such use of the proceeds of the Loan quarterly during the term of this Agreement and while the Note remains unpaid. Reasonable costs may include, but are not limited to, earnest money deposits, financial feasibility work, physical inspections, legal costs, consulting fees, Sponsor and Borrower overhead and administration costs, tenant training /participation costs, and other related costs. (b) Borrower shall promptly deliver to Agency such financial statements and other reports on Borrower and Borrower's properties as Agency may from time to time reasonably request. In particular, Borrower shall deliver to Agency a report on the use of the Loan proceeds and the progress of the purchase quarterly during the term of this Agreement and while the Note remains,unpaid. Upon reasonable notice, Agency may inspect Borrower's records and documents and the Property. (c) Borrower shall maintain at all times its status as an organization recognized by the Internal Revenue Service as an organization described in Section 501(c)(3) of the Al teal Revere: Code of 1986, and amended (the "Code"), and as an organization described in Sections 509(a)(1) and 170(b)(1)(A)(vi) of the Code. (d) Borrower shall make reasonable and diligent efforts to progress toward purchase of the Property and shall use its best efforts to fairly represent the desires of the majority of the current tenants residing at the Property. 5. Re resentations and Warranties of Borrower 2 Borrower represents and warrants to Agency, as of the date of this Agreement and the funding of the Loan hereunder, as follows: (a) Borrower is a nonprofit corporation duly organized, validly existing and in good legal standing under the laws of the State of California. Borrower is an organization currently applying for recognition by the Internal Reve- nue Service as an organization described in Section 501(c)(3) of the Code and is not a private foundation as defined in Section 509(a) of the Code because it is an organization described in Sections 509(a)(1) and 170(b) (1)(A)(vi) of the Code. (b) Borrower has full power and authority to execute, deliver and perform this Agreement and the Note. (c) This Agreement constitutes, and when delivered, the Note will constitute, the legal valid and binding obliga- tions of Borrower, enforceable against Borrower in accordance with their terms except as limited by general principles of equity and by bankruptcy, insolvency and other laws affecting the rights of creditors generally. (d) There is no legal action or proceeding pending or, to Borrower's knowledge, threatened against Borrower or the Property. 6. Indemnity Borrower shall defend and indemnify Agency and its directors, officers, employees and agents and hold each of them harmless from and against any and all claims, losses or liabilities (including attorneys fees) arising out of: (a) the inaccuracy or incompleteness of any representa- tion or warranty of Borrower herein; or (b) any default of Borrower under this Agreement or the Note. 7. Miscellaneous (a) Borrower shall pay any fees and costs in connection with the making of the Loan. (b) The losing party shall pay all costs and expenses, includ- ing reasonable attorneys' fees, the prevailing party may incur in any action or proceeding arising out of or related to this Agreement. 3 (c) Any notices concerning this Agreement may be given in writing to any party at the address set forth by its signature below, or at such other address as a party, by written notice, may designate. (d) This Agreement may not be amended except in writing. This Agreement sets forth the entire understanding of the parties respecting the Property or any loans relating thereto and supersedes any prior understandings or agreements of the parties respecting the Property or any such loans. (e) No waiver by Agency of any provision hereof and no consent or approval by Agency shall be valid unless in writing, and then shall apply only to the extent specifically set forth in such writing. Agency may, in its sole discre- tion, waive any provision of this Agreement, including the restrictions on use of the proceeds of the Loan. This Agreement is not intended to benefit, and does not benefit, any third person. (t~ This Agreement shall be binding on and inure to the benefit of the respective successors and assigns of the parties hereto, except that Borrower may not assign or transfer any of its rights hereunder without the prior written consent of Agency, which consent shall not be unreasonably withheld. (g) This Agreement shall be governed by and construed in accordance with the laws of the State of California. (h) Agency shall forgive the portion of the Loan principal, and Borrower's obligation under the Note, attributable to nonrefundable expenses paid from loan proceeds if Borrower has used its best efforts and made diligent progress toward the acquisition of the Property but has 1 nevertheless been unable to acquire the Property. Agency shall also forgive any portion of the Loan principal, and borrower's obligation under the Note, if permanent takeout financing is not available despite borrower's use of best efforts to obtain said financing, The parties hereto have executed and delivered this Agreement as of the date first set forth above. 4 AGENCY: Address: 1155 Tiburon Boulevard Tiburon, California 94920 Attn: ZQA1 "ift c BORROWER: Address: 100 Ned's Way Tiburon, California 94920 Attn: Carolyn Attkisson TIBURON REDEVELOPMENT AGENCY By Its ' ,6~Afy r/ I/e, THE HILARITA - TIBURON ECUMENICAL ASSOCIATION Its 5 Exhibit A to Loan Agreement PROPERTY DESCRIPTION The real property in the State of California, County of Marin, described as follows: THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF T I B UROh, COUNTY OF MARIN, STATE OF CALIFORNIA, DESCRIBED Aver F016-1-01-61s: BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF TIBURON BOULEVARD,, THE CALIFORNIA STATE tiI GHWAy FROM BELVEDERE CROSSING TO T I O URO`d, SAID POINT BEING DISTANT NORTH 27° 06' EAST, 50.00 FEET AND NORTH 620 54' WEST, 49.77 FEET FROM EN41NEERS STATION 229+24.69 ON T14E CENTER LINE SURVEY OF SAID HIGHWAY, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF MAR I N, SAID POINT BEING ALSO A POINT ON THE NORTHWESTERLY LINE OF THE PARCEL DESCRIBED IN DEED TO PEED UNION SCHOOL DISTRICT RECORDED IN BOOK 2285 OF OFFICIAL RECORDS AT PASS 31, MARIN COUNTY RECORDS; AND. RUNNING THENCE ALONG SAID NORTHWESTER L" LINE ON A CURVE TO THE RIGHT WHOSE CENTER BEARS NORTH 270 06' EAST OF RADIUS 20 FEET THP..000H A CENTRAL ANGLE OF 900 001 FOR AN ARC DISTANCE OF 31,42 FEET; THENCE NORTH 270 061 EAST, 36,14 FEET, ON A CURVE TO.THE RIGHT WHOSE CENTER BEARS SOUTH 620 54' EAST, A RADIUS 380 FEET THROUGH A CENTRAL ANGLE OF 300 00' FOR AN ARC DISTANCE OF 198 , 97 FEET TO A PO I;:T; THENCE LEAVING SAID NORTHWESTERLY LINE NORTH 570 06' EAST, 101.50 FEET; THENCE ON A CURVE TO THE LEFT WHOSE CENTER BEARS NORTH 320 541 WEST of RADIUS OF 370 FEET THROUGH A CENTRAL ANGLE 3910 40' 32" FOR AN ARC DISTANCE OF 256.21 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ON A CURVE TO THE LEFT WHOSE CEt:TER BEARS NORTH 720 34' 32" WEST OF RADIUS 128 FEET THROUGH A CENTRAL ANGLE OF 800 19' 28" FOR AN ARC DISTANCE OF 179.45 FEET; THENCE NORTH 620 54' WEST, 170.00 FEET SOUTH 710 199 1.1=ST, 100.00 FEET, SOUTH 330 15' WEST, 165,0n FEET, SOUTH 710 19' NEST, 145993 FEET, SOUTH 800 25' WEST, 101.28 FEET AND NORTH 62° 541 HEST, 210.88 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LYA~E OF THE '.AN1;3 DESCRIBED IN THE DEED '3 WARNOCr. RECORDED IN BOOK 1320 OF OFFICIAL RECORDS AT PAGE 381, MARIN COUNTY RECORDS; THENCE ALONG SAID SOUTHEASTERLY LIME SOUTH 800 25' WEST* 43.79 FEET, MORE OR LESS, AND SOUTH 270 06' HEST, 260.74 FEET (258.96 RECORDED), MORE OR LESS, TO THE NERE I NABOVE MENTIONED NORTHEASTERLY LINE OF T I BURON BOULEVARD; THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 620 54' EAST, 686.61 FEET (689.00 RECORDED), MORE OR LESS, TO THE POINT OF BEG I NNI Nr,. TOGETHER WITH AND APPURTENANT THERE-TO! AN EASEMENT FOR GRADING.* CnNSTRUCT I n-%4 A~SD MA I NTEtIANCE OF EAR Tai BUTTRESS, FOR SUB-SURFACE DRAINAGE ACID THE MAINTENAINCE THEREOF, DESCRI nCD AS FOLL011S BEG I NN I NC AT THE VIMSTERLY TE"M I NUS OF THE CALL "NORTH 62'0 51" WEST, 17 0. 0 0 FEET", AS SET FORTH IN THE FARCE: HEREIIIABOVE DESCRTBED; RUNNING THEI:CF SOUTH 710 19' WEST, 100.00 FEET, SOUTH 330 15' WEST, 165. ~1n FEET, SOUTH 71° 19' IICST, 145.93 FEET, SOUTH 800 25' WEST, 101.28 FEET AND NORTH 620 541 VIEST, 210.88 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF THE LANDS DESCRIBED IN THE DEED TO WARNOCK RECORDED IN BOOK 1320 OF OFFICIAL RECORDS AT PAGE 381, MAP.IN COU14TY RECORDS; THENCE ALONG SAID SOUTHEASTERLY LINE NORTH 800 25' EAST, 101.28 FEET TO A 1 INCH IRON PIPE TAGGED L.S. 2135 MARKING THE SOUTHWESTERLY TERMINUS OF THE SOUTHERLY LINE AND THE SOUTH- VESTERLY PROLONGATION THEREOF OF THE PARCEL DESCRIBED IN AUITCLAIM DEED FROM UP41TED STATES OF AMERICA TO WILLIAM CAMPBELL JUDGE RECORDED IN BOOK 538 OF OFFICIAL RECORDS AT PAGE 412, MARIN COUIITY RECORDS; THENCE ALONG SAID SOUTHERLY LM E AND THE SOUTHWESTERLY PROLONGATIONt THEREOF NORTH 710 19' EAST, 522.89 FEET TO A POINT; THENCE LEAVING SAID SOUTHERLY LINE AND THE SOUTHWESTERLY PROLONGATION SOUTH 18° 41' EAST,49.40 FEETO MORE OR LESS TO THE POINT OF BEGINN714GG Exhibit B PROMISSORY NOTE $165,000 to Loan Agreement Tiburon, California November 4 , 1994 FOR VALUE RECEIVED, The Hilarita - Tiburon Ecumenical Association, a Califor- nia nonprofit public benefit corporation, ("Maker"), hereby promises to pay to the order of the Tiburon Redevelopment Agency ("Agency"), at 1155 Tiburon Boule- vard, Tiburon, California, or other place designated by the holder hereof, the principal amount of One Hundred Sixty-five Thousand Dollars ($165,000) This Note is the promissory note provided for in the Loan Agreement dated as of November 4 , 1994 between Maker and Agency (the Loan Agreement"'). Maker shall pay the outstanding principal balance of this Note unless all or a portion of the loan is forgiven as provided for under the terms of the Loan Agree- ment. Maker may prepay this Note in whole or in part at any time or from time to time without payment fee or other penalty. Agency may extend the date of repay- ment upon request from Maker if acquisition of the Property has not occurred prior to December 31, 1995 and acquisition is expected to occur, in Agency's discretion, within a reasonable period of time. Each of the following events shall constitute an event of default ("Event of De- fault") under this Note and the Loan Agreement: (i) Maker shall fail to pay any amount due under this Note or the Loan Agreement on or before fifteen (15) days after the date due, (ii) Maker shall fail to perform or observe any other covenant or agreement contained in this Note or the Loan Agreement, or (iii) Maker shall (a) make any general arrangement or general assignment for the benefit of creditors or (b) file or have filed against it any petition or proceeding seeking entry of an order for relief as to Maker or seeking the reorganization of Maker or similar relief as to Maker under any bankruptcy or insolvency law or (c) have a trustee or receiver appointed to take possession of all or substantially all of its assets. At the option of the holder of this Note if an Event of Default has occurred, except automatically in case of an Event of Default under clause (iii) of the preceding paragraph, the unpaid principal on this Note shall become immediately due and payable. Maker hereby waives notice, demand, presentment and protest and notice of protest, dishonor or nonpayment of this Note. 1 Maker shall pay all costs and expenses, including reasonable attorneys' fees, incurred by the holder thereof in the collection of this Note. This Note shall be governed by and construed in accordance with the laws of the State of California. Executed as of the date first set forth above. THE HILARITA - TIBURON ECUMENICAL ASSOCIATION By am&"7L-j i Its 2